Source: Faxin

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　　Key Provisions

　　Article 1194 of the Civil Code

　　Changes in Legal Provisions

　　Article 1194 of the Civil Code is a provision concerning the independent tort liability of network users and network service providers, which occurs in the case where network users and network service providers directly implement tortious acts themselves. This article (Article 1194 of the Civil Code, hereinafter referred to as such) originates from Paragraph 1, Article 36 of the Tort Liability Law, and on the basis of continuing the provisions of this clause, it adds the second sentence “If there are other provisions by law, they shall be followed.”

　　Faixin: Changes in Legal Provisions

　　The Civil Liability Law of the People’s Republic of China

　　Article 36: If the network user or network service provider uses the network to infringe upon the civil rights and interests of others, they shall bear the liability for infringement.

　　If the network user commits an act of infringement by using network services, the victim of the infringement has the right to notify the network service provider to take necessary measures such as deleting, blocking, and disconnecting links. If the network service provider does not take necessary measures in a timely manner after receiving the notice, it shall bear joint and several liabilities with the network user for the expanded part of the damage.

　　If the network service provider knows that the network user uses its network service to infringe upon the civil rights and interests of others and does not take necessary measures, it shall bear joint and several liabilities with the network user.

　　Faixin: Similar Case Judgment Rules

　　1. The act of spreading others’ works through information networks in the Internet cafes operated by an information network company without permission is an act of infringement – The case of Beijing Wangshang Culture Communication Co., Ltd. v. Yinchuan Yangguang Wuxian Network Co., Ltd. in the dispute over the infringement of property rights of intellectual property

　　The essence of the case: The copyright owner of a film may, in accordance with the law, grant others the right to exercise property rights such as the right of information network dissemination of the film work. The authorized person enjoys this right in accordance with the law and is not infringed upon. Information networks include wide area networks and local area networks. If an information network company, without the permission of the right holder, spreads the film works enjoyed by others through information networks in the Internet cafes it operates, it is an act of infringement and should bear the civil liability for infringement.

　　Case Number: (2009) Yinyinminzhichu No. 41

　　Judicial Court: Intermediate People’s Court of Yinchuan City, Ningxia Hui Autonomous Region

　　Source: The Supreme People’s Court announced 50 typical cases of intellectual property judicial protection in Chinese courts in 2009

　　2. If the aggressor infringes upon the victim’s dignity of personality in the online chat group and causes spiritual damage to the victim, he should bear the liability for infringement – The case of Dai v. Zhong in the dispute over the responsibility for network infringement

　　The essence of the case: The aggressor made offensive remarks against the victim in the online chat group, causing inappropriate discussions among other group members, which is a defamation of the victim’s personality and constitutes intentional infringement. This behavior has infringed upon the victim’s dignity of personality and caused adverse effects and spiritual damage. The court should determine the civil liability for infringement based on the degree of fault, the context of words and deeds, the manner of behavior, and the scope of influence of the aggressor.

　　Judicial Court: Haicheng District People’s Court, Beihai City, Guangxi Zhuang Autonomous Region

　　Source: People’s Court Daily, June 5, 2020, Edition 3

　　3. Infringement liability should be borne for defaming and belittling others’ personality by publishing micro headlines and articles on the internet platform, infringing on others’ dignity of personality – The case of Chen v. Sha in the dispute over the responsibility for network infringement

　　The essence of the case: The infringer, through the means of publishing micro headlines and articles on the internet platform, defamed and belittled the victim’s personality, having a clear intention to harm the victim’s personality in the subjective sense, and objectively caused the victim’s reputation to be damaged within a certain range. The infringer should bear the corresponding legal consequences for his harmful behavior.

　　[Trial Court] Tongnan County People’s Court, Chongqing City

　　[Source] People’s Court Daily, June 4, 2020, Edition 3

　　4. Although the content of the online article does not constitute infringement, the title of the article can still be identified as constituting defamation – Zhejiang Shanbao Auto Parts Co., Ltd. vs. Yuhuan County Kamen San Zhi Jiao Vocational Introduction Office network infringement liability dispute case

　　The essence of the case: Although the content of the article published online does not constitute infringement, the title of the article is misleading enough to mislead people and reduce the social evaluation of others, infringing upon the reputation rights of others. Although the title and content of the online article are physically separated, they can still be identified as constituting defamation.

　　[Case Number] (2015) Zhe Tai Min Zhong Zi No. 728

　　[Trial Court] Zhejiang Taizhou Municipal People’s Court

　　[Source] People’s Court Case Selection, Issue 10, 2016 (Total Issue 104)

　　5. The network service provider disseminates the works of others in an unauthorized manner, constituting infringement – Ningbo Success Communication Co., Ltd. vs. Liangshan TV Station network dissemination right infringement dispute case

　　The essence of the case: The network service provider disseminates information processed and compiled from other websites on its webpage in the name of its website, and cannot prove that it has legal authorization. This action is not the service of providing a link channel, but a deep link, and it has subjective fault, constituting infringement.

　　[Case Number] (2009) Sui Min Zhong Zi No. 489

　　[Trial Court] Sichuan Higher People’s Court

　　[Source] People’s Court Daily, March 4, 2010, Edition 6

　　6. The network service provider broadcasts the exclusive information network dissemination rights of the right holder on its website without permission, constituting infringement – Central China Television International Network Co., Ltd. vs. Century Dragon Information Network Co., Ltd. copyright infringement dispute case

　　The essence of the case: Without the permission of the right holder, the network service provider broadcasts the exclusive information network dissemination rights of the right holder in real time on its website, infringing upon the right of information network dissemination of others, and should bear corresponding legal liabilities.

　　[Case Number] (2008) Sui Zhong Fa Min San Chu Zi No. 352

　　[Trial Court] Guangdong Province, Guangzhou Municipal People’s Court

　　[Source] People’s Judicial · Cases, Issue 2, 2010

　　7. The internet company cannot prove the legality of its actions, unilaterally suspending players’ game accounts, causing serious consequences, constituting infringement – An appeal case of a certain internet company and Xu Mou’s network infringement dispute

　　The essence of the case: As a developer and operator of online game platforms, internet companies form an equal civil legal relationship with players. Players have various rights over their game accounts. The internet company cannot prove the legality of its actions, unilaterally suspending players’ game accounts, causing players to be unable to play normally for a long time, causing great harm to their spirit. The internet company constitutes infringement, and players have the right to request it to bear corresponding civil liabilities.

　　【Case Number】(2008) Wu Min Erzhong No. 1237

　　【Trial Court】Wuhan Intermediate People’s Court, Hubei Province

　　【Source】’People’s Judicial · Cases’ 2009, Issue 18

　　8. The act of setting up hyperlinks to the photos of portrait right holders by commercial websites constitutes infringement – Guo Xiaojin vs. Beijing Sina Internet Information Service Co., Ltd. Dispute over Tort Liability Case

　　The essence of the case: Operators of commercial websites and providers of network information content, who have not fulfilled their reasonable review obligations, have actively transmitted and used others’ photos through the way of setting hyperlinks without the consent of the portrait right holder, objectively expanded the scope of infringement, have subjective fault, constitute portrait infringement, and should bear corresponding compensation liability.

　　【Case Number】(2006) Xuanmin No. 112

　　【Trial Court】Xuanwu District People’s Court, Nanjing City, Jiangsu Province

　　【Source】’People’s Judicial · Cases’ 2007, Issue 4

　　Faxin · Judicial Viewpoint

　　1. The scope of Internet users and the situations in which they infringe upon the civil rights and interests of others through the Internet

　　Internet users include natural persons and legal persons. Natural persons are usually referred to as ‘netizens’. In the process of the Internet, natural persons refer to the parties receiving network services. Internet users also include legal persons. Any legal organization that has the ability to conduct online transactions and online payment tools, and can assume corresponding legal liabilities for its transactions in the name of the legal person, can participate in online activities.

　　Internet users who infringe upon the civil rights and interests of others through the Internet can be generally divided into the following types: Firstly, the infringement of personality rights. This mainly manifests as: (1) Misusing or impersonating others’ names to infringe upon the right of name. (2) Using others’ portraits without permission to infringe upon the right of portraitbetting online website lottery online and The latest method. (3) Publishing articles that attack or defame others to infringe upon the right of reputation. (4) Illegally intruding into others’ computers, intercepting information transmitted by others, disclosing others’ personal information arbitrarily, sending spam emails in large quantities, and infringing upon the right of privacy. Secondly, the infringement of property rights. Due to the convenience and commercial nature of online activities, the situation of infringing upon property interests through the Internet is relatively common, such as stealing funds from others’ online banking accounts, and the most typical is the infringement of online virtual property, such as stealing others’ game equipment in online games and Online casino and How to find it, etc. Thirdly, the infringement of intellectual property rights. This mainly manifests as the infringement of others’ copyrights and trademarks. The situation of infringing upon copyrights includes: Unauthorized digital transmission of others’ works, circumventing technical measures, and infringing upon databases, etc. The situation of infringing upon trademarks includes: Using others’ trademarks on websites, deliberately leading consumers to believe that the website is owned by the trademark owner, and maliciously registering domain names that are identical or similar to others’ trademarks, etc.

　　(Excerpted from: ‘Understanding and Application of the Tort Liability Chapter of the Civil Code of the People’s Republic of China’, edited by the Leading Group for the Implementation of the Civil Code of the Supreme People’s Court, published by the People’s Court Publishing House in 2020, page 262.)

　　2. Scope of network service providers and situations of their direct infringement of civil rights of others

　　The term ‘network service provider’ is actually not a professional term in the IT industry, but more of a legal concept. Currently, in our country’s laws, administrative regulations, and judicial interpretations, there is no very clear definition of ‘network service provider’, and there are also expressions with the same meaning but different names in different laws and regulations. In addition to ‘network service provider’, there are also terms such as ‘network service provider providing content services’, ‘content service provider’, ‘Internet access service provider’, ‘Internet information service provider’, and ‘website operator’. In the ‘Regulations on the Protection of Information Network Communication Rights’, network service providers are classified according to the type of service provided, mainly including: (1) network service providers that provide information storage space or search and link services (Article 14). (2) network service providers that provide automatic network access services according to the instructions of service recipients, or provide automatic transmission services for works, performances, recorded audio and video products provided by service recipients (Article 20). (3) network service providers that automatically store works, performances, recorded audio and video products obtained from other network service providers to improve network transmission efficiency, and automatically provide services to service recipients according to technical arrangements (Article 21). (4) network service providers that provide information storage space for service recipients to provide works, performances, recorded audio and video products to the public through information networks (Article 22). In the ‘Administrative Measures for the Protection of Internet Copyright’ jointly issued by the National Copyright Administration and the former Ministry of Information Industry, ‘network service provider’ is expressed as ‘Internet information service provider’. In this measure, an Internet information service provider refers to a natural person, legal person, or unincorporated organization that automatically provides the uploading, storage, linking, or searching functions of works, recorded audio and video products, and other content according to the instructions of Internet content providers, and does not make any editing, modification, or selection of the stored or transmitted content.

　　From the perspective of the legislator’s interpretation, the connotation of the term ‘network service provider’ referred to in this article is relatively broad, and it should include both network technical service providers and network content service providers. The so-called technical service provider mainly refers to network entities that provide services such as access, caching, information storage space, search, and linking, and do not provide information directly to network users. The content service provider refers to network entities that actively provide content to network users, their legal status is the same as that of publishers, and they should be responsible for the authenticity and legality of the content uploaded. These two types of network service providers have essential distinctions. For network technical service providers, they only provide channels or platforms and do not actively edit, organize, or modify the information transmitted or stored, with all content provided by network users. For network content service providers, they directly provide content or product services to network users, and the content and products they provide are actively edited, organized, modified, or provided by the network service provider themselves. Accordingly, the legislation stipulates different regulatory models for these two behaviors. For network service providers that provide content and product services, as the information content on their websites is actively edited, organized, and provided by the network service provider themselves, of course, it should be the responsibility of the network service provider themselves. In cases where the rights and interests of others are infringed upon, such as fabricating false facts to defame others, releasing copyrighted audio-visual works, etc., direct infringement liability should be assumed. For network service providers that provide network access or platform services, in addition to complying with the provisions of Articles 1195, 1196, and 1197 of the Civil Code, technical service providers generally do not bear liability for the infringement of others’ civil rights by the information provided by network users. However, if technical service providers actively engage in infringing acts, such as destroying others’ technical protection measures, attacking others’ networks using technical means, or stealing others’ personal information, they shall also bear tort liability under this article.

　　It should be noted that the term ‘network’ here refers to a communication system that enables the exchange of information between different computers and other devices with information processing capabilities in an electronic manner, including the Internet and local area networks.

　　(Extracted from: ‘Understanding and Application of the Tort Liability Chapter of the Civil Code of the People’s Republic of China’ edited by the Leading Small Group of the Supreme People’s Court for the Implementation of the Civil Code, published by the People’s Court Press in 2020, pages 262-264.)

　　Legal Credit · Related Provisions

　　1. ‘Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Infringing upon Personal Rights and Interests by Means of Information Networks’

　　Article 1: The civil disputes arising from the infringement of personal rights and interests by means of information networks referred to in this regulation mean the disputes arising from the infringement of the personal rights and interests of others, such as the right of name, the right of name, the right of reputation, the right of honor, the right of portrait, the right of privacy, etc., caused by the use of information networks.

　　Article 17: Where a network user or network service provider infringes upon the personal rights and interests of others, causing property loss or serious mental damage, and the infrindred requests the person liable for the infringement to bear the liability for compensation in accordance with Articles 20 and 22 of the Tort Liability Law, the people’s courts shall support such a request.

　　2. ‘Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Infringing upon the Right of Information Network Dissemination’

　　Article 3: Without permission, network users or network service providers provide works, performances, recorded and video products that the right holders enjoy the right of information network dissemination through the information network, except as otherwise provided by laws and administrative regulations, the people’s courts shall recognize that it constitutes an act of infringing upon the right of information network dissemination.

　　By uploading to network servers, setting shared files, or using file sharing software, etc., the works, performances, recorded and video products are placed in the information network, allowing the public to download, browse, or obtain them in any other way at their own chosen time and place. The people’s courts shall recognize that the act of providing as stipulated in the preceding paragraph has been implemented.

　　3. ‘Regulation on the Protection of Information Network Dissemination Rights’ (2013 revision)

　　Article 14: Where the right holder believes that the works, performances, sound recordings, and video recordings involved in the services provided by the network service provider for information storage space or search and link services infringe upon his or her information network dissemination rights or that his or her rights management electronic information has been deleted or altered, the right holder may submit a written notice to the network service provider, requesting the network service provider to delete the works, performances, sound recordings, and video recordings or disconnect the links with the works, performances, sound recordings, and video recordings. The notice shall contain the following contents:

　　(I) The name (name) of the right holder, contact information, and address;

　　(II) The name and network address of the infringing works, performances, sound recordings, and video recordings that require deletion or disconnection of the link;

　　(III) Preliminary evidence of infringement;

　　The right holder shall be responsible for the authenticity of the notice;

　　Article 20: Where the network service provider provides network automatic access services in accordance with the instructions of the service object or provides automatic transmission services for the works, performances, sound recordings, and video recordings provided by the service object, and meets the following conditions, the network service provider shall not bear civil liability:

　　(I) Did not select or alter the works, performances, sound recordings, and video recordings transmitted;

　　(II) Provides the works, performances, sound recordings, and video recordings to the designated service object and prevents other persons from obtaining them beyond the designated service object;

　　Article 21: Where the network service provider automatically stores works, performances, sound recordings, and video recordings obtained from other network service providers to improve network transmission efficiency, automatically provides them to the service object in accordance with technical arrangements, and meets the following conditions, the network service provider shall not bear civil liability:

　　(I) Did not alter the automatically stored works, performances, sound recordings, and video recordings;

　　(II) Does not affect the original network service provider’s ability to control the situation in which the service object acquires the works, performances, sound recordings, and video recordings;

　　(III) Upon modification, deletion, or blocking of the works, performances, sound recordings, and video recordings by the original network service provider, automatically modify, delete, or block them in accordance with technical arrangements.

　　Article 22: Where the network service provider provides information storage space for the service object to provide works, performances, sound recordings, and video recordings to the public through information networks and meets the following conditions, the network service provider shall not bear civil liability:

　　(I) Clearly indicate that the information storage space is provided for the service object, and publicly disclose the name, contact person, and network address of the network service provider;
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　　(II) Did not alter the works, performances, sound recordings, and video recordings provided by the service object;

　　(III) Did not know and had no reasonable reason to know that the works, performances, sound recordings, and video recordings provided by the service object were infringing;

　　(IV) Did not directly obtain economic benefits from the works, performances, sound recordings, and video recordings provided by the service object;

　　(V) After receiving the notice from the right holder, delete the works, performances, sound recordings, and video recordings deemed to infringe upon the rights of the right holder in accordance with the provisions of this Regulation.